Citation Nr: 0606266
Decision Date: 03/03/06 Archive Date: 03/14/06
DOCKET NO. 03-07 609 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for a stomach
condition, to include ulcers.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Acosta, Counsel
INTRODUCTION
The veteran served on active duty from November 1969 to
August 1971.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from an October 1993 rating decision of the
Department of Veterans Affairs (VA) Huntington, West
Virginia, Regional Office (RO), which denied the veteran's
claims of entitlement to service connection for a stomach
condition, including ulcers, and bilateral hearing loss.
The veteran provided testimony in support of his appeal at an
RO hearing held in May 1994 and, more recently, at a video
hearing chaired by the undersigned in May 2004. Transcripts
of both hearings are of record.
The Board remanded the case in October 2004 for additional
development.
In February 2005, the veteran submitted a claim of
entitlement to service connection for adult-onset diabetes
mellitus, to include as secondary to Agent Orange exposure.
This matter appears not to have yet been acted upon and is
accordingly referred to the RO for appropriate action.
FINDINGS OF FACT
1. VA has complied with its notification and assistance
requirements under the laws and has obtained and developed
all the evidence that is necessary for an equitable
disposition of the matters on appeal.
2. The veteran was exposed to artillery noise during service
but his currently manifested bilateral hearing loss, which
was first diagnosed more than 22 years after service and
after a post-service history of occupational noise exposure
for almost 16 years, with no ear protection, is not shown to
be etiologically related to service.
3. A stomach condition, to include ulcers, was never
diagnosed during service and is not currently demonstrated.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 1112, 1154 (West 2002); 38
C.F.R. §§ 3.6, 3.303, 3.304, 3.307, 3.309, 3.385 (2005).
2. A stomach condition, to include ulcers, was not incurred
in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R.
§§ 3.303, 3.304, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary matters-The Veterans Claims Assistance Act of
2000 (VCAA)
The VCAA describes VA's duties to notify and assist claimants
in substantiating their claims for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant of any information and medical or lay evidence
that is necessary to substantiate the claim. 38 U.S.C.A.
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112,
120-21 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must request that the claimant provide any evidence
in his possession that pertains to the claim.
VA fully complied with its notification duties in regards to
the veteran's claims by means of a letter issued in February
2005. Thus, the veteran in this case has received adequate
VCAA notice. See Short Bear v. Nicholson, 19 Vet. App. 341
(2005); see also Mayfield v. Nicholson, 19 Vet. App. 103
(2005).
Even though VCAA notification was given after the initial
decision from which this appeal arose, delayed notice is
generally not prejudicial to a claimant. Mayfield.
Moreover, there has been no allegation of prejudice in this
case on account of the timing of the VCAA notice given and,
insofar as it is clear from the record that the veteran has
been made fully aware of what is needed to substantiate his
claims prior to their final adjudication by VA, he has not
been prejudiced because he has been provided "a meaningful
opportunity to participate in the adjudication process."
Short Bear.
The VCAA also requires VA to make reasonable efforts to help
every claimant obtain evidence necessary to substantiate his
claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R.
§ 3.159(c), (d) (2005). This "duty to assist" contemplates
that VA will help a claimant obtain records relevant to his
claims, whether or not the records are in Federal custody,
and that VA will provide a medical examination and/or opinion
when necessary to make a decision on the claims. 38 C.F.R.
§ 3.159(c)(4).
In the present case, the duty to assist has been fulfilled,
as VA has secured all identified treatment records that are
pertinent to the veteran's claims on appeal and has had the
veteran examined as well.
At his July 2005 VA stomach/duodenum examination, the veteran
reported being in receipt of benefits from the Social
Security Administration (SSA) on account of a back injury
sustained at work in 2003. These records have not been
sought. Generally, VA has a duty to acquire copies of both
the SSA decision and the supporting medical records pertinent
to such a claim. Dixon v. Gober, 14 Vet. App. 168, 171
(2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992).
However, insofar as the veteran has stated that his SSA
disability benefits were awarded because of a back injury,
they are clearly not relevant to either of his two claims on
appeal. Therefore, pursuant to 38 C.F.R. § 3.159(c)(2), VA
has no further obligation to secure this evidence insofar as
it is considered not relevant to the matters on appeal.
There is no suggestion on the current record that there
remains evidence that is pertinent to the matters on appeal
that has yet to be secured. Thus, the appeal is ready to be
considered on the merits.
I. Service connection for bilateral hearing loss
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110.
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection for
any particular disability, there must be (1) medical evidence
of a current disability; (2) medical evidence, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between an in-service injury or disease and the
current disability. Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).
The determination as to whether the above three requirements
are met is based on an analysis of all the evidence of record
and the evaluation of its credibility and probative value.
Baldwin v. West, 13 Vet. App. 1, 8 (1999).
For purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the above
frequencies are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. 38 C.F.R. § 3.385; see Hensley v. Brown, 5 Vet.
App. 155, 158 (1993).
Service connection may also be granted for sensorineural
hearing loss, as an organic disease of the nervous system, on
a presumptive basis, if it appeared to a compensable degree
within one year after service. 38 U.S.C.A. §§ 1110, 1112,
1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Where, a veteran engaged in combat, satisfactory lay evidence
that an injury or disease was incurred in service will be
accepted as sufficient proof of service connection where such
evidence is consistent with the circumstances, conditions, or
hardships, of service. 38 U.S.C.A. § 1154(b) (West 2002).
Section 1154(b) sets forth a three step sequential analysis
that must be undertaken when a combat veteran seeks benefits
under the method of proof provided by the statute. First, it
must be determined whether the veteran has proffered
"satisfactory lay or other evidence of service incurrence or
aggravation of such injury or disease." Second, it must be
determined whether the proffered evidence is "consistent
with the circumstances, conditions, or hardships of such
service." Finally, if the first two requirements are met,
VA "shall accept the veteran's evidence as "sufficient
proof of service connection," even if no official record
exists of such incurrence exists. In such a case, a factual
presumption arises that that the alleged injury or disease is
service connected. Collette v. Brown, 82 F.3d 389, 393 (Fed.
Cir. 1996); 38 C.F.R. § 3.304 (1996).
Notwithstanding the presumptions of Section 1154, competent
evidence of a current disability and of a nexus between
service and a current disability is still required. Wade v.
West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App.
536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996).
At his May 1994 RO hearing and at his June 2004 video hearing
before the undersigned, the veteran contended that his
bilateral hearing loss is etiologically related to his
inservice exposure to artillery and mortar noise while
serving in combat in the Republic of Vietnam. Accordingly,
he believes that he is entitled to be service-connected for
this disability of service onset.
The record confirms that the veteran served in the Republic
of Vietnam during the Vietnam era, that he served in combat,
and that his unit was indeed exposed to artillery and mortar
noise. The veteran's service medical records, however, do
not reveal the manifestation of bilateral hearing loss, as
defined for VA purposes, at any time. On the contrary, they
reveal that, at the time of the veteran's examination for
separation purposes in August 1971, he had normal ("15/15")
hearing on whispered voice test, bilaterally. Also, on the
back of that document, the veteran wrote that his condition
had not changed since his last physical examination and that
his condition at the time of discharge was "fair."
On a private physical examination in November 1993, the
veteran gave his primary job description as "dozer"
operator, post driller, loader, and "labor," and stated
that he had hurt his ears at work. Specifically, he
explained that he had "hurt [his] ear [while] drilling [at]
work." He stated that he had hearing loss, that the hearing
loss had been present for 10 to 12 years (in other words,
that it dated back to between 1981 and 1982), and that his
exposure had been to loud noise and equipment at work. He
was noted to have a "hearing impairment."
Documents pertaining to a worker's compensation claim filed
by the veteran in 1994 reveal that the veteran reported
having worked, between May 1978 and April 1994, for a private
mining company where he was exposed, for 10 hours each day,
to noise from drills, dozers, diesels, cranes, and loaders,
while wearing no ear protection. He also reported at that
time having sustained an "ear injury while drilling at
work" in 1978, that his hearing loss began between 1978 and
1979, and that he had had two years of prior artillery
machine gun noise exposure while in service, with no ear
protection.
The above documents also reveal the veteran's report of
having worked for the last time around noise in April 1994
(his last day at work at the private mining company). The
veteran described the noise as coming from diesel engines and
"tracks squealing," and stated that he communicated with
his co-workers by shouting. An audiogram revealed moderately
high frequency bilateral sensorineural hearing loss, which
the examiner opined was most likely noise induced.
Discrimination scores were reported as 100 percent for both
ears and the average hearing loss was 120 and 105 decibels
for the right and left ears, respectively.
On VA audiological evaluation in July 2005, the veteran
reported his military noise exposure as artillery noise while
serving in Vietnam for 12 to 13 months, where he fired and
loaded 105, 155, and 175 Howitzers and 8-inch guns. The
veteran stated that he felt that he sustained damage to his
hearing due to frequent firing and sleeping while there was
"firing overhead," as well as rocket and mortar attacks.
Regarding his occupational noise exposure, the veteran stated
that he worked for one year in the construction industry, but
that it was "not noisy," as it involved "just hammering."
He also reported having worked in the mines for over 20
years, where he did not wear any hearing protection devices
("HPDs") but was exposed to "some noise" only, as "it was
surface mining with enclosed air conditioned cabs."
Regarding any recreational noise exposure, the veteran stated
that he "used to squirrel hunt a little, [but] not any
longer."
The following pure tone thresholds, in decibels, were
reported:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
15
45
60
70
LEFT
15
10
15
60
70
Speech discrimination scores of 84 and 100 percent were
reported for the right and left ears, respectively.
The examiner gave diagnoses of moderate to severe
sensorineural hearing loss above 1500 Hz, on the right, and
moderately severe to severe sensorineural hearing loss above
2000 Hz, on the left. She then pointed out that she reviewed
the claims folders, that the veteran's hearing was normal
both at enlistment and at separation, and that the veteran
had a long history of occupational noise exposure from
surface mining without hearing protection devices. She noted
that the first audiogram located after service was a 1994
workmen's compensation test, which showed a significant high
frequency hearing loss, bilaterally, and which, she pointed
out, "was 23 years after separation."
The examiner further noted that a statement taken from the
veteran in 1994 indicated that he felt that his hearing loss
began in 1978 or 1979. She also stated that, while the
veteran reported significant military noise exposure from
Howitzer fire without hearing protection devices, "no
evidence of [inservice] hearing loss was found." Based on
all this data, she offered the opinion that the veteran's
bilateral hearing loss was "not at least as likely as not
caused by [his] military [service] in part due to [the]
vet[eran]'s statement that [the hearing] loss began in 1978
or 1979."
The record of this combat veteran confirms noise exposure
during service, as well as current sensorineural hearing loss
in both ears, as defined under Section 3.385. Thus, the
criteria of an inservice event or injury and a current
disability are met.
Even though the veteran is a combat veteran, the evidence
does not support his claim that his current bilateral hearing
loss was either caused or aggravated by service. While the
veteran did have noise exposure during his two years of
active military service, after service he had, almost 16
years of constant occupational noise exposure for 50 hours
every week with no hearing protection. He also has reported
one year of occupational noise exposure in the construction
industry, as well as recreational noise exposure while
squirrel hunting. Also, as pointed out by the VA audiologist
who examined him in July 2005, the veteran acknowledged in
1994 that his hearing loss started either in 1978 or in 1979,
basically, around the time when he has reported he started
working in the mines.
Additionally, the only competent nexus opinion in regards to
the veteran's claim for service connection for bilateral
hearing loss is against the veteran's claim. The VA
audiologist who examined him in July 2005 has opined that it
is not at least as likely as not that the current bilateral
hearing loss is etiologically related to service, and her
opinion is clearly supported by the evidence.
The Board acknowledges the veteran's belief that his
diagnosed bilateral hearing loss is etiologically related to
service. However, as a lay person he is not competent to
express an opinion as to medical causation. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993).
In short, the veteran's claim fails because there is no
competent medical evidence relating his diagnosed bilateral
hearing loss to service. The Board accordingly concludes
that the diagnosed bilateral hearing loss was not incurred in
or aggravated by service. Thus, because the preponderance of
the evidence is against the veteran's claim, the claim must
be denied.
Additionally, the Board finds that the evidence in this claim
is not so evenly balanced so as to allow application of the
benefit of the doubt rule, as required by law and VA
regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.
II. Service connection for a stomach condition, to include
ulcers
In addition to the previously cited regulations pertaining to
service connection, VA regulation also provides for the grant
of service connection for any disability shown to be
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a). Secondary service
connection may also be granted where a service connected
disability aggravates a nonservice connected disability.
Allen v. Brown, 7 Vet. App. 439 (1995).
The above notwithstanding, the Court has made it clear that,
in the absence of proof of a current disease or injury, there
can be no valid claim. See Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992).
According to the record, which, as noted earlier, includes
the veteran's testimony at his May 1994 RO hearing and at his
June 2004 video hearing before the undersigned, the veteran
contends that he has a stomach condition that is
etiologically related to service or a service-connected
disability. His contentions include a statement to the
effect that, when he got upset, his stomach would "kill"
him (see transcript of May 1994 RO hearing, at p. 5), and his
more recent statement to the effect that he did not have
stomach problems during service but that he believes that he
currently has a stomach ulcer that is secondary to his
service-connected PTSD (see p. 16 of the transcript of the
June 2004 video hearing). Accordingly, he believes that he
is entitled to be service-connected for this disability.
The veteran's service medical records reveal a January 1970
gastroenterology consultation due to complaints of a 24-hour
history of diarrhea. The service medical records are,
however, entirely silent as to any further complaints,
treatment for, or a diagnosis of any stomach condition. On
the contrary, they reveal that the veteran's abdomen and
viscera were clinically evaluated as normal on medical
examination for separation purposes conducted in August 1971,
at which time no complaints of any stomach problems or
symptomatology were reported. In fact, as noted earlier, the
veteran wrote, on the back of the report of that medical
examination, that his condition had not changed since his
last physical examination and that his condition was
"fair."
The post-service medical evidence reveals that the veteran
presented to a VA clinic in November 1986 with complaints of
stomach cramps and passing bright red blood per rectum since
the prior evening. He denied a history of ulcers,
hemorrhoids, or colon problems, but said that he had a 10-
year history of intermittent bright red rectal bleeding and
intermittent abdominal pain. Another record also dated in
November 1986 reveals that the complaints included slight
diarrhea.
According to a VA outpatient record dated in January 1987,
the veteran no longer had any pain nor any nausea or
vomiting. His abdomen was negative, with no masses with
light and deep palpation and no tenderness or hernia. It was
further noted that an ultrasound (the report of which is of
record) was likewise negative.
VA outpatient medical records dated in June 1999 and March
2000 describe the veteran's abdomen as "benign," while a
January 2001 VA outpatient medical record describes it as
soft, not tender ("nt") and nondistended ("nd"). None of
these records indicates any stomach-related complaints or
symptoms, much less a related diagnosis.
On VA "stomach/duodenum" examination in July 2005, the
examiner noted that the veteran's service medical records
contained no mention of a stomach disorder and that, as a
matter of fact, the veteran had characterized his physical
condition as "fair" on his separation examination report.
While the veteran claimed that he had been hospitalized at
the Huntington VA hospital in 1972 for "stomach and
kidneys," the examiner noted that the discharge summary from
that admission revealed an admission for anxiety reaction and
a mild urinary tract infection.
The veteran admitted not having specifically seen anyone for
an ulcer and having had no upper gastrointestinal studies or
endoscopies performed until a barium swallow was done for
purposes of this examination. An esophagram revealed only a
mild deviation of the esophagus to the right in the proximal
portion of the neck, which the examiner opined may simply
represent a mildly circuitous course of the esophagus,
although a mass displacing the esophagus to the right could
not be excluded. There was no evidence of a hiatal hernia.
An upper gastrointestinal study, with double contrast,
revealed no hiatal hernia or reflux and no mucosal
abnormalities in the esophagus, stomach, or duodenal bulb.
The impression was "no significant or focal abnormality is
seen."
The examiner noted that the veteran claimed a 30-year history
of his stomach bothering him. Specifically, he explained
that, after eating, or sometimes while eating, he would get
diarrhea and would have to get up and go to the bathroom. He
also said that, about once a week, he would vomit when
getting up in the morning. He denied hematemesis and melena.
The examiner pointed out that the veteran had not mentioned
his diarrhea episodes to his primary care provider nor had
been evaluated for gastrointestinal complaints.
The veteran stated that his two children also suffered from a
"nervous stomach," which the examiner stated raised the
question of a possibility of lactose deficiency or other
absorption abnormalities or allergies, although the veteran
could not correlate his episodes with any special type of
food, or milk. The veteran stated that he had abdominal
cramps with the diarrhea, with no nausea or vomiting, that
the episodes would last for an hour, and that they would be
of moderate severity.
The examiner noted that the veteran showed no evidence of
anemia, that both his hematocrit and hemoglobin levels were
normal, that the veteran's bodyweight had "gone up" by 30
pounds, from 223 pounds, to 253 pounds, in the past two
years, and that no specific site of ulcer disease was
previously demonstrated. Physical examination revealed a
normal abdomen, with slightly hyperactive bowel sounds, no
percussion or rebound tenderness, and only mild direct
tenderness in the left lower quadrant over the colon and in
the right upper quadrant that was relieved with release of
the pressure.
In the impression section, the examiner reiterated that the
veteran's service medical records did not reveal any evidence
of treatment of ulcer disease or dyspepsia, that his upper
gastrointestinal studies did not show an ulcer or gastric
ulcer disease, and that there was no previous demonstration
of such a disease. He then opined that it was not likely as
not that the veteran had ulcer disease currently or that he
had ulcer disease at any time, as there was no documentation
or evidence of a study for ulcer disease having ever been
accomplished.
While there is evidence of an incident of diarrhea during
service, no actual disability related to the stomach was ever
diagnosed during service and, the veteran has not reported
symptoms of a gastrointestinal disorder during service.
The veteran contends that a current gastrointestinal disorder
is secondary to the service connected PTSD. Inasmuch as
service connection is in effect for PTSD, there is arguably
evidence in support of a disease or injury in service.
The veteran is also competent to report current
gastrointestinal symptoms; however, examinations and
diagnostic studies have been unable to confirm the presence
of such a disorder. The weight of the evidence is, thus,
against a finding that there is a current disease or
disability.
Even if the evidence showed a current disease or disability,
there is no competent evidence linking the current disease or
disability to service.
The veteran has not reported a continuity of symptomatology,
and, as a lay person, he is not competent to provide an
opinion as to medical causation. Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993). Accordingly, his assertion that a
current gastrointestinal disability is the result of PTSD, is
of no probative value. Id. No competent medical
professional has linked a current gastrointestinal disability
to service or to a service connected disease or disability.
In short, the preponderance of the evidence is against the
veteran's claim for service connection for a stomach
condition, to include ulcers.
Accordingly, the evidence in this claim is not so evenly
balanced so as to allow application of the benefit of the
doubt rule, and the claim is denied. 38 U.S.C.A. § 5107(b);
38 C.F.R. §§ 3.102.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for a stomach condition, to include
ulcers, is denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs